It has been reported that the James Bond 007 novels are about to be published as e-books for the first time – but not by the current publisher (Penguin), but by Ian Fleming Publications Ltd, the part of the Ian Fleming estate that has administered rights to the books since Fleming died in August 1964.

Casino Royale by Ian Fleming

The e-books will be available through Amazon and other e-book retailers from Thursday 4 November 2010.

This illustrates the potential for maximising the return on exploiting digital rights and traditional print rights separately. The Fleming estate will no doubt expect to make more money by selling e-books directly then by licensing e-book rights to the current print version publisher.

Penguin has indicated that it will not renew its current deal with Ian Fleming Publications unless digital rights are included, but it’s difficult to see Ian Fleming Publications going back on their current position.

Naturally, one would expect publishers to want to acquire all rights that they possibly can, particularly as sales of e-books are already increasing rapidly and are expected to exceed those of the corresponding printed versions in the near future. Some literary agents consider there is an advantage in keeping the digital rights and the print rights with the same publisher – that may be true in some instances, but Ian Fleming Publications point out that in the case of the James Bond novels, they are not really dependent on the print publisher’s marketing machinery to create awareness of the novels in e-book form.

Digital rights to JK Rowling’s Harry Potter books are currently being negotiated. One can hardly begin to guess the value of these rights – it would hardly be surprising if people who have bought the books in print will want to have them as e-books too. For one thing, they will weigh much less!

The publishing rights for books form part of the copyright, which can be divided up in so many different ways. The printed form publication rights alone can be divided into hardback and paperback, and then subdivided further (e.g. large print versions, educational versions, and so on). They can and are also divided up by means of language and territory – so at any one time there may be many different parties exploiting a particular work in different formats, in different languages, in different parts of the world. There is no reason – from a legal point of view – why the digital rights have to go with the printed form rights, although book publishers have been routinely acquiring digital rights for many years, even if it’s only very recently that they have actually been exploiting these rights. It’s often with the older, classic backlist works, where the publisher did not acquire digital rights, that there is an opportunity for digital rights to be exploited by a different publisher from the printed form rights.

It will be interesting to see whether this will set a trend for separate exploitation of digital and printed form rights.

Lara Stone, the Dutch supermodel who is married to Little Britain star David Walliams, has won “significant” damages from French Playboy after the magazine published unauthorised photographs of her, it was reported today.

Ms Stone has said she will give the money to Great Ormond Street Hospital for Children.

The case was heard in a court in Paris under French image rights legislation.

Her lawyers said that Playboy was also ordered to publish a prominent legal statement in the next edition of the magazine confirming the court has found it has infringed Stone’s image rights.

JK Rowling, author of the phenomenally successful Harry Potter books, and her publisher Bloomsbury Publishing plc, have failed in their attempt to stop a copyright infringement claim going any further on the grounds that it has no chance of succeeding at trial.

In a judgement issued on 14 October 2010, the judge said that “I have reached the conclusion that this claim may succeed but that it is improbable it will do so”. On this basis, he was not able to throw out the claim entirely, as Ms Rowling and her publisher had wanted, and the judge may now require the claimant to provide security for Ms Rowling’s and Bloomsbury’s costs before being allowed to proceed further with the claim.

The claim involves two books: the first is called called Willy the Wizard (“WTW”), and was written in 1987 by the late Mr Adrian Jacobs.

The claim is being brought by the trustee of Mr Jacobs’ estate, Mr Paul Allen, and is essentially that, as a result of copying, the Harry Potter book reproduces a substantial part of WTW. This is not one of those cases where the claimant can show that there are large parts of his or her work that have been reproduced more or less verbatim. Instead, the case is that aspects of the plot, sub-plots, themes and incidents in WTW have been copied. This is like the Da Vinci Code case (where Michael Baigent and Richard Leigh sued Random House, publisher of The Da Vinci Code by Dan Brown), claiming that Dan Brown’s bestselling book had copied essential elements from their own book.

Both this case and the Da Vinci Code case make it clear that “Copyright does not subsist in ideas; it protects the expression of ideas, not the ideas themselves.”.

Mr Allen’s claim is based on the argument that in 1987, Christopher Little, who became Ms Rowling’s literary agent some eight years later, was given copies of WTW and that he gave a copy to Ms Rowling before she wrote Goblet or, indeed, any of the other Harry Potter books.

There was a substantial disagreement as to the facts, which the judge is not required to resolve on this type of an application, since that requires the sort of evidence only available at the full trial. However, the judge did go on to consider the elements of WTW that the claimant said had been copied in the Harry Potter book and the principles that would have to be applied in assessing whether or not a substantial part of WTW is reproduced in the Harry Potter book as a result of copying. The judge concluded that “the similarities upon which Mr Allen relies seem to me to constitute ideas which are relatively simple and abstract and I strongly incline to the view that they are at such a high level of generality that they fall on the ideas rather than the expression side of the line. However, I do not feel able at his stage to say that Mr Allen’s case is so bad that I can properly describe it as fanciful.”.

So this case will continue, assuming that the claimant is able to fulfil any conditions about security for costs that might be imposed by the judge when he has heard further argument from each side. I can’t imagine that JK Rowling and Bloomsbury will settle the case, irrespective of the merits (or otherwise) of this particular claimant’s case (as to which I am not really in a position to pass comment) – to do so might open them up to an avalanche of further claims from others hoping to profit from the success of the Harry Potter books.

Above is the previous post — “Are Tweets Copyright?” — in the form of a Wordle.

What is (a) Wordle, I hear you ask? In the words of the inventor, Jonathan Feinberg:

“Wordle is a toy for generating “word clouds” from text that you provide. The clouds give greater prominence to words that appear more frequently in the source text. You can tweak your clouds with different fonts, layouts, and color schemes. The images you create with Wordle are yours to use however you like. You can print them out, or save them to the Wordle gallery to share with your friends.”

First of all, I must make it clear that this is nothing to do with Tweetie Pie, the canary character from the Warner Brothers series of animated cartoons, usually also featuring Sylvester

Sylvester J Pussycat

the cat. Having said that, it’s a good excuse to include some pictures and I suppose it’s just about possible that there might be some actual connection — if anyone knows the answer to that, do please let me know.

For the purposes of this item, tweets are about Twitter. Most people have heard of Twitter by now. It’s a way of finding out what people are up to and letting others know what you are up to.

Basically, you just type in an answer to the question “What are you doing?” in 140 characters or less, and then these messages, which are called “tweets”, are posted to your profile or your blog, sent to your followers, and are searchable on Twitter search.

But are tweets protected by copyright? And who cares anyway?

At 140 characters or less, tweets are very short. It’s quite likely that the absolutely vast majority of tweets will not fulfil the legal requirements to constitute a copyright literary work under UK copyright law or the equivalent under copyright laws of other jurisdictions, primarily because not enough skill and labour will have gone into writing them (UK legal requirements) or will not be regarded as sufficiently original under copyright laws elsewhere.

Until very recently, the number of words alone and might have been enough to make a reasonably-informed judgment as to whether something is likely to be protected by copyright. However, the European Court of Justice has just decided that as few as 11 words can constitute a sufficient part of a copyright work to be protectable, if the words reproduced “are the expression of the intellectual creation of their author”, and the ECJ went on to say that it is for the national court to make this determination.

Consider the following situations:

A poet publishes a complete (albeit short) poem, such as a haiku, on Twitter

A poet publishes a longer poem on Twitter, one line at a time — each lie in being a separate tweet

An author publishes a novel on Twitter, one sentence at a time (bearing in mind that many years ago, books were often originally published in serial form, in weekly instalments — including works by Charles Dickens — so publication on Twitter might be a way of taking this to an extreme!)

Some of the above individual tweets might not be protected by copyright, e.g. individual sentences from the novel postulated above. But others might well be protected by copyright if they involve sufficient skill and labour or are sufficiently original. And if any individual tweet in such circumstances might not be protected by copyright, would a collection of two, or three, or more such tweets together constitute a protectable copyright work? I think that might well be the case.

Consider the following scenario:

Someone searches through Twitter for all, or many, of the posts by a particular celebrity, say Stephen Fry, and reproduces them in a book or on a website.

Does that infringe Stephen Fry’s copyright? Does that infringe any rights (such as database right) that might be owned by Twitter, even though they disclaim ownership of Intellectual Property Rights in users’ tweets?

Retweeting is the process whereby someone sends the whole or part of someone else’s tweet either with or without something they themselves have added. Clearly this is a reproduction of someone else’s work and, if the material reproduced is protected by copyright, then questions of copyright infringement arise. However, it’s possible that there might be implied some sort of limited license to “retweet”, as this appears to be a key feature of Twitter.

Twitter themselves are clearly aware that their service has the potential to be used in such a way that it infringes copyright, since they provide a means for resolving disputes in their Terms and Conditions.

I’d be interested to hear other people’s thoughts on copyright and other IP aspects of Twitter — or indeed other social networking websites.

JD Salinger wins again. The US Federal Court in New York issued a preliminary injunction on 1 July 2009 preventing the various defendants (also, publisher, distributor) from manufacturing, publishing, distributing, shipping, advertising, promoting, selling or otherwise disseminating any copy of “60 Years Later: Coming Through the Rye”, or any portion thereof, in or to the United States. See various previous posts below for the lead up to the grant of the injunction. The judge, Deborah A Batts, had taken some time for consideration before issuing her judgment, which can be read here.

The issue of a preliminary injunction does not necessarily determine the final outcome of the case. It preserves the status quo until the matter can be argued in full at trial. And the issue of a preliminary injunction can be appealed — which the defendants in this case have indicated they intend to do. Nevertheless, there is a tendency for legal cases to end with the preliminary injunction — by this stage, both parties are likely to have spent a lot of money, not to mention time, and their appetite for a fight may have become sated.

It’s worth looking at how the court approached the application for a preliminary injunction in this particular case. As this is a US case, I will mention the US Court’s approach.

First of all, you have to bear in mind that an application for a preliminary injunction is not a full trial of all the issues. Accordingly, under applicable rules in the US, to obtain a preliminary injunction a party must demonstrate:

1. That it will be irreparably harmed if an injunction is not granted; and

2. Either:

(a) a likelihood of success on the merits; or

(b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of the hardships tipping decidedly in its favour.

Since the Defendants’ case was based on “fair use”, much of the careful judgment was directed towards whether or not such a defence had any prospect of succeeding. The “fair use” doctrine was codified in section 107 of the US 1976 Copyright Act, which provides that “… the fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching… scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

The court looked at all of these in quite some detail. In particular, under the first leg of the “fair use” doctrine, the court examined closely the defendants’ claim that “60 Years Later” is a parody of “Catcher in the Rye”, Holden Caulfieldand/or of Salinger. This is a particularly interesting analysis and worth reading in its own right to see how a court assesses whether one work is a parody of another and the difference between parody and satire. Ultimately, however, the court leaned against the defendants on this.

As regards the second factor (the nature of the copyrighted work), the Court held that “there is no question that in this case, the novel The Catcher in the Rye is a “creative expression for public dissemination [that] falls within the core of the copyright’s protective purposes”, and therefore this factor weighed against a finding of fair use.

In assessing the third factor (the amount and substantiality of the portion used in relation to the copyrighted work as a whole), the Court held that the defendants “have taken much more from Salinger’s copyrighted works than is necessary to serve their alleged critical purpose”, and this factor weighed heavily against a finding of fair use.

The court then looked at the fourth factor — the effect of the use upon the potential market for or value of the copyrighted work. Although the court found that “it appears unlikely that 60 Years would undermine the market for Catcher itself”, it held that you also have to take account of the effect on the market for a Catcher sequel or other derivative works, and that 60 Years could substantially harm that market, whether through confusion as to which is the true sequel or companion to Catcher or simply because of reduced novelty or press coverage. Further, even though Salinger himself had made it clear that he had no intention of publishing a sequel or other derivative work of Catcher, the US courts had established that it is the “potential market” for the copyrighted work and its derivatives that has to be examined. The fact that US copyright law specifically gives the copyright owner the exclusive right to authorise the creation of derivative works may have been a significant element here. So the court found that this fourth factor weighed against fair use — “albeit only slightly”.

Ultimately, the court found that the plaintiff, JD Salinger, is likely to succeed on the merits of his copyright claim, and case law established that in such a case irreparable harm may be presumed. Inevitably, therefore, the grant of the preliminary injunction followed as Salinger had met the necessary requirements.

Further developments to look out for:

The defendants have indicated they will appeal the grant of the preliminary injunction – according to GalleyCat;

Will the defendants publish outside the US?

If so, will Salinger sue outside the US?

And if he did, would he be likely to win?

Depending on the respective parties’ willingness to continue the fight, and availability of money, this one could keep us entertained for years to come.

Latest news, according to The Hollywood Reporter, is that the court has granted an injunction (a “temporary restraining order” or TRO) for 10 days from 17 June 2009, preventing publication of “60 Years Later” in the US. The judge will use that period to decide whether the book can be published or whether the case should go on to trial.